in respect of cross-border surveillance.222 223 The Special Rapporteur for the right to privacy has accordingly held that: any international agreements that permit surveillance activities directed at foreigners or citizens must be carried out in compliance with fundamental human rights such as privacy and non-discrimination. Any national laws or international agreements disregarding this fact, must be considered outdated and incompatible with the universal nature of privacy and fundamental rights in the digital age.224 6.3 Big Data “Big Data” is a term that is becoming increasingly prevalent alongside the rapid development of technology that allows for the collection of data. The UN Special Rapporteur on the right to privacy, in his October 2017 report on “Big Data, Open Data” characterised Big Data as a: Term commonly used to describe the large and increasing volume of data and the advanced analytical techniques used to search, correlate, analyse and draw conclusions from it.225 There is no agreed definition to Big Data. However, various experts in the field have defined it as: • huge in volume, consisting of terabytes or petabytes of data; • high in velocity, being created in or near real-time; • diverse in variety, being structured and unstructured in nature; • exhaustive in scope, striving to capture entire populations or systems; • fine-grained in resolution and uniquely indexical in identification; 222 Report of Special Rapporteur on countering terrorism, Ben Emmerson (23 September 2014) para. 43 (“States are legally bound to afford the same protection to nationals and non-nationals, and to those within and outside their jurisdiction.”); The UN Human Rights Committee has highlighted that any interference with the right to privacy must comply with the principles of legality, proportionality and necessity, regardless of nationality or location of individuals whose communications are under direct surveillance CCPR/C/USA/CO/4 at para. 22. 223 See David Andersen Q.C. Independent Reviewer of Terrorism Legislation, A Question of Trust Report of the Investigatory Powers Review (June 2015) citing Venice Commission of the Council of Europe, pg 80 224 Report of Special Rapporteur on the right to privacy (24 February 2017) para. 29. 225 Ibid. para. 36. • relational in nature, with common fields enabling the conjoining of different data sets; • flexible, adding new fields easily and able to expand in size rapidly.226 The Special Rapporteur has observed that Big Data is increasingly being used to “produce social benefits, including personalised services, increased access to services, better health outcomes, technological advancements and accessibility improvements.”227 While the potential utility of Big Data is profound, the Special Rapporteur has urged caution in applying it too readily and without objective scrutiny: …epistemological claims, which tend to elevate Big Data to a new form of scientific method, lie at the centre of the unease many have expressed about the limitations of, and risks posed by, Big Data.228 One of the most significant developments arising from Big Data has been the introduction of new analytical techniques that allow for the detection of meaningful patterns in the data. One such technique is ‘data mining’ – “a process whereby data is extracted from large data sets and subsequently analysed to determine whether patterns or correlations exist.”229 The algorithm is the “engine” which drives this technique by determining how data should be interpreted and what resulting actions should be taken.230 As discussed above, in New Zealand the application of algorithmic risk assessments to Big Data has been identified as having utility for social sector policy and decision-making. In particular, it is seen as underpinning the implementation and operation of the “social investment model” in which “citizen-based analytics” is used to provide empirical support for social policy 226 Report of Special Rapporteur on the right to privacy (24 November 2017) citing Rob Kitchen, Big Data, new epistemologies and paradigm shifts, Big Data & Society, April-June 2014, pg. 1 227 Ibid. para 44. 228 Ibid. para. 48 229 Ibid. para. 54. 230 Ibid. para. 55. 43